Exhibit 4.1
EXECUTED COPY
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CONCURRENT COMPUTER CORPORATION
a Delaware corporation
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
a New York banking organization
RIGHTS AGENT
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AMENDED AND RESTATED RIGHTS AGREEMENT
DATED AS OF AUGUST 7, 2002
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TABLE OF CONTENTS
Section 1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . . . . . 6
Section 3. Issuance of Rights Certificates. . . . . . . . . . . . . . . . . . . 6
Section 4. Form of Rights Certificates. . . . . . . . . . . . . . . . . . . . . 8
Section 5. Countersignature and Registration. . . . . . . . . . . . . . . . . . 9
Section 6. Transfer, Split-Up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates . . . . . . 10
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. . . . 11
Section 8. Cancellation and Destruction of Rights Certificates. . . . . . . . . 12
Section 9. Reservation and Availability of Capital Stock. . . . . . . . . . . . 13
Section 10. Preferred Shares Record Date . . . . . . . . . . . . . . . . . . . . 14
Section 11. Adjustments to Number and Kind of Shares; Number of Rights or
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 12. Certification of Adjustments . . . . . . . . . . . . . . . . . . . . 22
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 14. Fractional Rights and Fractional Shares. . . . . . . . . . . . . . . 25
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . . . . . . 26
Section 17. Rights Certificate Holder Not Deemed a Stockholder . . . . . . . . . 27
Section 18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . . . . . 27
Section 19. Merger or Consolidation or Change of Name of Rights Agent. . . . . . 28
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 28
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 30
Section 22. Issuance of New Rights Certificates. . . . . . . . . . . . . . . . . 31
Section 23. Redemption and Termination . . . . . . . . . . . . . . . . . . . . . 32
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 25. Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . . . 34
Section 26. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . 35
Section 28. Determinations and Actions by the Board. . . . . . . . . . . . . . . 36
Section 29. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 30. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . 36
Section 31. Governing Law .. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 34. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
EXHIBITS
Exhibit A Form of Amended Certificate of Designations of Series A
Participating Cumulative Preferred Stock of Concurrent Computer
Corporation filed with the Secretary of the State of Delaware on
August 13, 1992
Exhibit B Form of Amendment to Amended Certificate of Designations of
Series A Participating Cumulative Preferred Stock of Concurrent
Computer Corporation
Exhibit C Form of Rights Certificate
-ii-
AMENDED AND RESTATED RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED RIGHTS AGREEMENT (this "Agreement"), dated as of
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August 7, 2002, is by and between Concurrent Computer Corporation, a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company, as
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rights agent (the "Rights Agent");
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W I T N E S S E T H:
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WHEREAS, on July 31, 1992, the Board of Directors of the Company authorized
and declared a dividend distribution of one Right for each Common Share (as
hereinafter defined) of the Company outstanding at the close of business on
August 14, 1992 (the "Record Date") (which for these purposes shall include all
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Common Shares presently entitled to receive dividends) and authorized the
issuance of one Right (as such number may hereafter be adjusted pursuant to the
provisions of Section 11(i) hereof) for each Common Share of the Company issued
between the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date (as hereinafter defined), each
Right initially representing the right to purchase one one-hundredth of a Junior
Preferred Share (as hereinafter defined) of the Company having the rights,
powers and preferences set forth in the Amended Certificate of Designations of
Series A Participating Cumulative Preferred Stock filed with the Secretary of
State of the State of Delaware on August 13, 1992, as amended by the Amendment
to Amended Certificate of Designations of Series A Participating Cumulative
Preferred Stock, the forms of which are attached hereto as Exhibit A and Exhibit
B, respectively, upon the terms and subject to the conditions hereinafter set
forth (the "Rights"); and
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WHEREAS, on July 31, 1992 the Company and BankBoston, N.A. (f/k/a First
National Bank of Boston) ("BankBoston") entered into a Rights Agreement (the
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"Original Rights Agreement") pursuant to which the Company issued the Rights and
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BankBoston acted as Rights Agent; and
WHEREAS, pursuant to Section 26 of the Original Rights Agreement, the
Company and BankBoston entered into that certain Amendment to Rights Agreement
dated June 27, 1996 to amend the definition of an Acquiring Person; and
WHEREAS, pursuant to Sections 21 and 26 of the Original Rights Agreement
BankBoston and the Company entered into that certain Second Amendment to Rights
Agreement dated August 7, 2002 to amend certain provisions of Section 21 of the
Original Rights Agreement, to waive certain provisions of Section 21 of the
Original Rights Agreement and remove BankBoston as the Rights Agent; and
WHEREAS, the Company desires to amend and restate the Original Rights
Agreement to reflect the appointment, pursuant to Section 2 herein, of American
Stock Transfer & Trust Company as the successor Rights Agent and to extend the
Final Expiration Date (as defined herein) to August 14, 2012 and in other
respects set forth in this Agreement; and
WHEREAS, effective as of the date of this Agreement, the company desires
and directs the Rights Agent to amend and restate the Original Rights Agreement
in its entirety pursuant to Section 26 of the Original Rights Agreement and in
the manner set forth in this Agreement;
WHEREAS, as of the date of this Agreement, no Person (as such term is
hereinafter defined) had become an Acquiring Person (as such term is hereinafter
defined);
WHEREAS, the Board of Directors of the Company has considered whether
approval of this Agreement and the distribution of the Rights is in the best
interests of the Company and all other pertinent factors;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
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following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Voting Power of the Common Shares of the
Company then outstanding; provided, however, that:
(i) the term "Acquiring Person" shall not include an Exempt
Person (so long as such Person remains an Exempt Person);
(ii) a Person shall not be deemed to have become an
"Acquiring Person" solely as a result of the acquisition by the Company of
shares of capital stock of the Company which, by reducing the number or Voting
Power of shares outstanding, increases the Voting Power of the shares
beneficially owned by such Person to 15% or more of the Voting Power of the
Common Shares; provided, however, that if a Person shall so become the
Beneficial Owner of Common Shares of the Company representing 15% or more of the
Voting Power of the Common Shares of the Company then outstanding by reason of
the acquisition by the Company of shares of capital stock of the Company and
shall, after such share purchases by the Company, purchase or otherwise take
action to cause it to become the Beneficial Owner of any additional Common
Shares of the Company, then such Person shall be an Acquiring Person;
(iii) a Person shall not be deemed to have become an
"Acquiring Person" if (a) the Board of Directors of the Company in its good
faith judgment determines that a Person has inadvertently become the Beneficial
Owner of Common Shares of the Company that would otherwise cause such Person to
become an Acquiring Person; (b) the Board of Directors in its sole discretion
provides such Person with a designated period to divest a sufficient number of
shares so that such Person no longer is the Beneficial Owner of Common Shares of
the Company that would otherwise cause such Person to be an Acquiring Person,
and (c) such Person has so divested such shares at the end of any such
designated period and has not acquired any additional shares of capital stock of
the Company prior to the end of such designated period; and
(iv) Common Shares of the Company Beneficially Owned by the
Company or any Subsidiary of the Company shall not be considered outstanding for
purposes of
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calculating any Person's percentage ownership of the Voting Power of the
outstanding Common Shares of the Company.
(b) "Adjustment Shares" shall have the meaning set forth in
Section 11(a)(ii).
(c) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of and shall
be deemed to "Beneficially Own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, whether or not in writing (other
than customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall not be
deemed the "Beneficial Owner" of or to "Beneficially Own" securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates pursuant to, and in accordance
with the General Rules and Regulations promulgated under the Exchange Act, until
such tendered securities are accepted for purchase or exchange; or (B) pursuant
to any agreement, arrangement or understanding whether or not in writing, the
right to vote or dispose of such securities or "beneficial ownership" (as
defined in Rule 13d-3 of the General Rules and Regulations under the Exchange
Act as in effect on the date of this Agreement) of such securities; provided,
however, that a Person shall not be deemed the "Beneficial Owner" of or to
"Beneficially Own" any securities if the agreement, arrangement or understanding
to vote such security (1) arises solely from a revocable proxy or consent given
to such Person in response to a public proxy or consent solicitation made to
more than ten holders of shares of a class of stock of the Company registered
under Section 12 of the Exchange Act and pursuant to, and in accordance with,
the General Rules and Regulations under the Exchange Act and, (2) is not also
required to be reported by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliates or Associates thereof) with which such
Person or any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except as described in the proviso to clause (B) of
subparagraph (ii) of this Section 1(d)) or disposing of any securities of the
Company.
Notwithstanding anything in this definition of Beneficial Ownership to the
contrary, the phrase "then outstanding," when used with reference to a Person's
Beneficial Ownership of securities of
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the Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually issued
and outstanding which such Person would be deemed to Beneficially Own under this
Agreement.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of Delaware are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M.,
central time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., central time, on the next succeeding
Business Day.
(g) "Common Shares," when used with reference to the Company,
shall mean shares of the common stock, par value $0.01 per share, of the
Company. "Common Shares," when used with reference to any Person other than the
Company, shall mean the capital stock or other equity interests with the
greatest per share or per unit voting power of such other Person or, if such
other Person is a Subsidiary of or is controlled by another Person, the Person
or Persons which ultimately control such first-mentioned Person.
(h) "Common Share Equivalents" shall have the meaning set forth in
Section 11(a)(iii).
(i) "Current Market Price" shall have the meaning set forth in
Section 11(d).
(j) "Current Value" shall have the meaning set forth in Section
11(a)(iii).
(k) "Distribution Date" shall have the meaning set forth in
Section 3(a).
(l) "Equivalent Preferred Shares" shall have the meaning set forth
in Section 11(b).
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(n) "Exchange Ratio" shall have the meaning set forth in Section
24(a).
(o) "Exempt Person" shall mean:
(i) the Company,
(ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any
Subsidiary of the Company, or
(iv) any Person or entity organized, appointed, established
or holding Common Shares of the Company for or pursuant to the terms of any
such employee benefit plan.
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(p) "Expiration Date" shall have the meaning set forth in Section
7(a).
(q) "Final Expiration Date" shall have the meaning set forth in
Section 7(a).
(r) "Flip-In Event" shall have the meaning set forth in Section
11(a)(ii).
(s) "Flip-In Trigger Date" shall have the meaning set forth in
Section 11(a)(iii).
(t) "Flip-Over Event" shall mean any event described in clause
(x), (y) or (z) of Section 13(a).
(u) "Junior Preferred Shares" shall mean shares of Junior
Preferred Stock
(v) "Junior Preferred Stock" shall mean the Series A Participating
Cumulative Preferred Stock, par value $0.01 per share, of the Company, and, to
the extent there are not a sufficient number of shares of Series A Participating
Cumulative Preferred Stock authorized to permit the full exercise of the then
outstanding Rights, any other series of preferred stock of the Company
designated for such purpose by the Board of Directors of the Company containing
terms substantially similar to the terms of the Series A Participating
Cumulative Preferred Stock.
(w) "Nasdaq National Market" shall have the meaning set forth in
Section 9(b).
(x) "Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(y) "Principal Party" shall have the meaning set forth in Section
13(b).
(z) "Purchase Price" shall mean the price (subject to adjustment
as provided herein) at which a holder of a Right may purchase one one-hundredth
(1/100th) of a share of Junior Preferred Stock (subject to adjustment as
provided herein) upon an exercise of a Right, which price shall initially be
$30.00.
(aa) "Record Date" shall have the meaning set forth in the
recitals clause at the beginning of this Agreement.
(bb) "Redemption Date" shall mean the date on which the Rights are
redeemed as provided in Section 23.
(cc) "Redemption Period" shall have the meaning set forth in
Section 23(a)
(dd) "Redemption Price" shall have the meaning set forth in
Section 23(a).
(ee) "Rights" shall have the meaning set forth in the recitals
clause at the beginning of this Agreement.
(ff) "Rights Certificates" shall have the meaning set forth in
Section 3(a).
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(gg) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(hh) "Shares Acquisition Date" shall mean the earlier of (i) the
first public announcement (which for this purpose shall include, without
limitation, a report filed pursuant to Section 13(d) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such (or, if
such announcement occurs before the Record Date, the Close of Business on the
Record Date) or (ii) the public disclosure of facts by the Company or an
Acquiring Person indicating that an Acquiring Person has become such; provided,
however, that in the case of clause (i) or clause (ii) of this Section 1(hh), if
such Person is determined not to have become an Acquiring Person pursuant to
Section 1(a), then no such Shares Acquisition Date shall be deemed to have
occurred.
(ii) "Subsidiary" of a Person shall mean any corporation or other
entity of which securities or other ownership interests having ordinary voting
power sufficient to elect a majority of the board of directors or other persons
performing similar functions are Beneficially Owned, directly or indirectly, or
otherwise controlled by such Person.
(jj) "Substitution Period" shall have the meaning set forth in
Section 11(a)(iii).
(kk) "Trading Day" shall have the meaning set forth in Section
11(d)(i).
(ll) "Triggering Event" shall mean any Flip-In Event or Flip-Over
Event.
(mm) "Voting Power" shall mean the total number of votes entitled
to be cast generally by the holders of the Common Shares of the Company then
outstanding.
Section 2. Appointment of Rights Agent. The Company hereby appoints
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the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3, shall, prior to the Distribution Date, also
be the holders of the Common Shares of the Company) in accordance with the terms
and conditions of this Agreement, and the Rights Agent hereby accepts such
appointment. The Company from time to time may appoint such co-Rights Agents as
it may deem necessary or desirable. If the Company appoints one or more
co-Rights Agents, the respective duties of the Rights Agent and any co-Rights
Agents shall be as the Company shall determine.
Section 3. Issuance of Rights Certificates.
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(a) Until the earlier of (i) the Close of Business on the tenth
day after the Shares Acquisition Date; or (ii) the Close of Business on the
tenth Business Day (or such later date as may be determined by action of the
Board of Directors of the Company prior to such time as any Person becomes an
Acquiring Person) after the date of the commencement by any Person (other than
an Exempt Person) of, or of the first public announcement of the intent of any
Person (other than an Exempt Person) to commence, a tender or exchange offer the
consummation of which would result in any Person, together with its Affiliates
and Associates, becoming the Beneficial Owner of 15% or more of the Voting Power
of the then outstanding Common Shares of the Company (irrespective of whether
any shares are actually purchased pursuant to such offer) (the earlier of such
events described in clauses (i) and (ii) being referred to in this Agreement as
the "Distribution Date"), (x) the Rights will be evidenced (subject to the
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provisions of Section 3(c)) (1) by the certificates for the Common Shares
registered in the names of the holders thereof (which certificates for such
Common Shares of the Company shall be deemed also to be certificates for such
Rights other than for purposes of this Section 3 and any provision of this
Agreement referring to the issuance or distribution of Rights Certificates) and
not by separate Rights Certificates or (2) to the extent that any Common Shares
are not evidenced by certificates but are rather recorded in book entry form, by
such book entry with respect to the Common Shares, and (y) the Rights (and the
right to receive separate Rights Certificates) will be transferable only in
connection with the transfer of the underlying Common Shares of the Company
(including a transfer to the Company). As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will
countersign, and the Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first class, insured, postage prepaid mail, to each
record holder of Common Shares as of the Close of Business on the Distribution
Date, as shown by the records of the Company, at the address of such holder
shown on such records, one or more rights certificates in substantially the form
of Exhibit C hereto, evidencing one Right for each Common Share (a "Rights
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Certificate"), so held, subject to adjustment as provided in this Agreement. As
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of and after the Distribution Date, the Rights will be evidenced solely by such
Rights Certificates and will be transferable separately from the Common Shares
of the Company.
(b) The Rights Agent will mail to any holder of the Rights
Certificate a copy of this Agreement without charge to the holder but at the
expense of the Company after receipt of a written request therefor.
(c) With respect to Common Shares of the Company outstanding as of
the Close of Business on the Record Date, until the Distribution Date (or, if
earlier, the Expiration Date or the Final Expiration Date), the Rights will be
evidenced by certificates for Common Shares of the Company registered in the
names of the holders thereof. Until the Distribution Date (or, if earlier, the
Expiration Date or Final Expiration Date), the surrender for transfer of any
certificate for Common Shares of the Company outstanding on the Record Date,
with or without a copy of the Summary Rights, also shall constitute the
surrender for transfer of the Rights associated with the Common Shares of the
Company.
(d) Rights shall be issued in respect of all Common Shares of the
Company that are issued (whether originally issued or from the Company's
treasury) after the Record Date but prior to the earliest of the Distribution
Date, the Expiration Date or the Final Expiration Date. Until the Distribution
Date, certificates representing Common Shares also shall be deemed to be
certificates for the associated Rights, and shall have impressed on, printed on,
written on or otherwise affixed to them substantially the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a n Amended and
Restated Rights Agreement between Concurrent Computer
Corporation and American Stock Transfer & Trust Company, as
Rights Agent, dated as of August 7, 2002 (the "Amended and
Restated Rights Agreement"), as may be amended from time to
time, the terms of which are incorporated herein by
reference and a copy of which is on file at the principal
executive offices of Concurrent Computer
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Corporation. Under certain circumstances, as set forth in
the Amended and Restated Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be
evidenced by this certificate. Concurrent Computer
Corporation will mail to the holder of this certificate a
copy of the Amended and Restated Rights Agreement, as in
effect on the date of mailing, without charge, after receipt
by it of a written request therefor. Under certain
circumstances as provided in the Amended and Restated Rights
Agreement, Rights issued to, held by or Beneficially Owned
by Acquiring Persons, their Associates or Affiliates (as
such terms are defined in the Amended and Restated Rights
Agreement), or any subsequent holder of such Rights will
become null and void.
With respect to such certificates containing the foregoing legends, the Rights
associated with the Common Shares of the Company shall, until the earliest of
the Expiration Date, the Final Expiration Date or the Distribution Date, be
evidenced by such certificates alone and holders of record of Common Shares of
the Company also shall be the holders of record of the associated Rights, and
the surrender for transfer of any such certificate shall also constitute the
surrender for transfer of the Rights associated with the Common Shares of the
Company represented thereby.
(e) If the Company purchases or acquires any Common Shares of the
Company after the Record Date but prior to the Distribution Date, any Rights
associated with such Common Shares shall be deemed canceled and retired so that
the Company shall not be entitled to exercise any Rights associated with the
Common Shares of the Company that are no longer outstanding.
Section 4. Form of Rights Certificates.
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(a) Rights Certificates (and the forms of election to purchase
shares and of assignment to be printed on the reverse thereof), when, as and if
issued, shall be substantially in the form set forth in Exhibit C hereto, and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or trading system
on which the Rights may from time to time be listed or traded, or to conform to
usage. Subject to the provisions of Sections 7(e), 11, 22, and 23, the Rights
Certificates, whenever distributed, shall be dated as of the distribution date
and shall entitle the holders thereof to purchase such number of one
one-hundredths of a Junior Preferred Share, as shall be set forth therein at the
price per one one-hundredth of a Junior Preferred Share set forth therein, but
the amount and type of securities purchasable upon the exercise of each Right
and the Purchase Price thereof shall be subject to adjustment as provided
therein and in this Agreement.
(b) Notwithstanding any other provision of this Agreement, any
Rights Certificate that represents Rights that are or were at any time on or
after the Distribution Date Beneficially Owned by an Acquiring Person or any
Affiliate or Associate thereof (or any
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transferee of such Rights) shall have impressed on, printed on, written on or
otherwise affixed to it (if the Company or the Rights Agent has knowledge that
such Person is an Acquiring Person or an Associate or Affiliate thereof or
transferee of such Person or a nominee of any of the foregoing) the following
legend:
The Beneficial Owner of the Rights represented by this
Rights Certificate is an Acquiring Person or an Affiliate or
Associate (as such terms are defined in the Amended and
Restated Rights Agreement) of an Acquiring Person or a
subsequent holder of such Rights Certificate Beneficially
Owned by such Persons. Accordingly, under circumstances
specified in the Amended and Restated Rights Agreement, this
Rights Certificate and the Rights represented hereby will
become null and void.
Notwithstanding the above provision, failure to place such legend on any Rights
Certificate representing Rights which are otherwise null and void pursuant to
the terms of this Agreement shall not affect the null and void status of such
Rights.
Section 5. Countersignature and Registration.
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(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, Chief Executive Officer, President or any
Vice President, either manually or by facsimile signature, shall have affixed
thereto the Company's seal or a facsimile thereof, and shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Rights Certificates shall be countersigned by the
Rights Agent and shall not be valid for any purpose unless so countersigned. If
any officer of the Company who shall have signed any of the Rights Certificates
shall cease to be such officer of the Company before countersignature by the
Rights Agent or issuance and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent, and issued and delivered
by the Company with the same force and effect as though the person who signed
such Rights Certificates had not ceased to be such officer of the Company; and
any Rights Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Rights Certificate, shall be a
proper officer of the Company to sign such Rights Certificate, although at the
date of the execution of this Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office designated for such purposes, books for
registration and transfer of the Rights Certificates issued under this
Agreement. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face
by each of the Rights Certificates, the date of each of the Rights Certificates,
and the certificate numbers for each of the Rights Certificates.
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Section 6. Transfer, Split-Up, Combination and Exchange of Rights
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Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
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(a) Subject to the provisions of Section 4(b), Section 7(e) and
Section 14, at any time after the Close of Business on the Distribution Date and
at or prior to the Close of Business on the earlier of the Expiration Date or
the Final Expiration Date, any Rights Certificate or Rights Certificates (other
than such Rights Certificates representing Rights that have become null and void
pursuant to this Agreement or that have been exchanged pursuant to Section 24)
may be transferred, split up, combined or exchanged for another Rights
Certificate or Rights Certificates, entitling the holder of record to purchase a
like number of one one-hundredths of a Junior Preferred Share (or, following a
Triggering Event, Common Shares of the Company, other securities, cash or other
assets, as the case may be) as the Rights Certificate or Rights Certificates
surrendered then entitles such holder (or former holder in the case of a
transfer) to purchase. Any holder of record desiring to transfer any Rights
Certificate or Rights Certificates shall surrender the Rights Certificate or
Rights Certificates at the office of the Rights Agent designated for such
purposes with the form of assignment on the reverse side thereof (or enclose
with such Rights Certificate or Rights Certificates a written instrument of
transfer in a form satisfactory to the Company and the Rights Agent), duly
executed by the holder of record thereof or his attorney duly authorized in
writing, and with such signature duly guaranteed. Any holder of record desiring
to split up, combine or exchange any Rights Certificate or Rights Certificates
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Rights Certificates to be split up, combined
or exchanged at the office of the Rights Agent designated for such purposes.
Neither the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the holder of record shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall request. Thereupon the Rights Agent
(subject to Section 4(b), Section 7(e), Section 14 and Section 23) shall
countersign and deliver to the person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and, if requested by the Company,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Rights Certificate if mutilated, the Company (subject to the provisions of
Section 4(b), Section 7(e), Section 14 and Section 23) will execute and deliver
a new Rights Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
10
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
------------------------------------------------------
Rights.
- ------
(a) Subject to Section 7(e), at any time after the Distribution
Date, the holder of record of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided in this Agreement, including
without limitation, the restrictions on exercisability set forth in Section
9(b), Section 11(a)(iii) and Section 23(a)), in whole or in part upon surrender
of the Rights Certificate, with the form of election to purchase and the
certificate contained in the form of election to purchase on the reverse side
thereof duly executed (with such signature duly guaranteed), to the Rights Agent
at the office of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total number of one
one-hundredths of a Junior Preferred Share (or other securities, cash or other
assets, as the case may be, as to which such surrendered Rights are then
exercisable), subject to adjustment as provided in this Agreement, at or prior
to the earlier of (i) the Close of Business on August 14, 2012 (as such date may
be extended by the Board of Directors) (the "Final Expiration Date"), (ii) the
---------------------
time at which the Rights are redeemed as provided in Section 23 (such date being
herein referred to as the "Expiration Date"), or (iii) the time at which such
---------------
Rights are exchanged as provided in Section 24.
(b) The Purchase Price with respect to each Right shall initially
be $30.00 for each one one-hundredth of a Junior Preferred Share issued pursuant
to the exercise of a Right. The Purchase Price and the number of one
one-hundredths of a Junior Preferred Share or other securities or consideration
to be acquired upon exercise of a Right shall be subject to adjustment from time
to time as provided in Sections 11 and 13. The Purchase Price shall be payable
in lawful money of the United States of America in accordance with Section 7(c).
(c) Except as provided in Section 7(e), upon receipt of a Rights
Certificate representing exercisable Rights, with the form of election to
purchase and the certificate contained in the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the shares or other
securities or assets to be purchased and an amount equal to any applicable
transfer tax, by cash, certified check or official bank check payable to the
order of the Company, the Rights Agent, subject to Section 20(j), shall
thereupon promptly (i) (A) requisition from any transfer agent of the Junior
Preferred Shares (or make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of Junior Preferred Shares so
elected to be purchased and the Company will comply and hereby authorizes and
directs such transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of Junior Preferred
Shares issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Junior Preferred Share as are to be purchased
(in which case certificates for the Junior Preferred Shares represented by such
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with such request,
(ii) when appropriate, requisition from the Company the amount of cash, if any,
to be paid in lieu of issuance of fractional shares in accordance with Section
14, (iii) promptly after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the holder of record of
such Rights Certificate, registered in such name or names as may be designated
by such holder, and (iv) when appropriate, after receipt promptly deliver such
cash to or upon the order of the holder of record of such Rights Certificate;
provided, however, that in the case of a purchase of securities,
11
other than Junior Preferred Shares, pursuant to Section 13, the Rights Agent
shall promptly take the appropriate actions corresponding to the foregoing
clauses (i) through (iv). If the Company is obligated to issue other securities
(including Common Shares) of the Company, pay cash and/or distribute other
property pursuant to Section 11(a), the Company will make all arrangements
necessary so that such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when appropriate. The
Company reserves the right to require prior to the occurrence of a Triggering
Event that, upon an exercise of Rights, a number of Rights be exercised so that
only whole Junior Preferred Shares would be issued.
(d) If the holder of record of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Rights Certificate or to
his duly authorized assigns, subject to the provisions of Section 14.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the occurrence of a Triggering Event, any Rights Beneficially
Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or a transferee of any such
Associate or Affiliate of the Acquiring Person) who becomes a transferee after
the Acquiring Person becomes such (and any subsequent transferees of such
transferee), or (iii) a transferee of an Acquiring Person (or a transferee of
any Associate or Affiliate of the Acquiring Person) who becomes a transferee
prior to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (B)
a transfer which the Board of Directors of the Company has determined is part of
a plan, arrangement or understanding which has a primary purpose or the effect
of avoiding this Section 7(e), shall become null and void without any further
action, and any holder (including any subsequent holder) of such Rights shall
thereupon have no rights whatsoever with respect to such Rights, whether under
any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this Section 7(e) are
complied with, but shall have no liability to any holder of Right Certificates
or other Person as a result of its failure or inability to make any
determinations with respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a holder of record upon the occurrence of any purported
exercise as set forth in this Section 7 unless such holder of record shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate surrendered for
such exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall request.
Section 8. Cancellation and Destruction of Rights Certificates. All
---------------------------------------------------
Rights Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it,
12
and no Rights Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the Rights Agent shall
so cancel and retire, any other Rights Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Rights Certificates to the Company, or shall, at the written
request of the Company, destroy or cause to be destroyed such canceled Rights
Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
---------------------------------------------
(a) The Company covenants and agrees that it will cause to be
reserved and kept available, out of and to the extent of its authorized and
unissued Junior Preferred Shares not reserved for another purpose (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued Common Shares or other securities) or shares held in its treasury, the
number of Junior Preferred Shares (and, following the occurrence of a Triggering
Event, Common Shares or other securities) that, as provided in this Agreement,
including Section 11(a)(iii), will be sufficient to permit the exercise in full
of all outstanding Rights. Prior to the occurrence of a Triggering Event, the
Company shall not be obligated to cause to be reserved and kept available, out
of its authorized and unissued Common Shares or shares of preferred stock (other
than Junior Preferred Shares), any such Common Shares or any shares of preferred
stock (other than Junior Preferred Shares) to permit exercise of outstanding
Rights.
(b) The Company shall (i) cause, from and after such time as the
Rights become exercisable, the Rights and all Junior Preferred Shares (and
following the occurrence of a Triggering Event, Common Shares, issued or
reserved for issuance upon exercise thereof) to be listed or admitted for
trading by the Nasdaq National Market ("Nasdaq National Market") or any other
----------------------
national securities exchange upon notice of issuance upon such exercise and (ii)
if then necessary to permit the offer and issuance of such Junior Preferred
Shares (and, following the occurrence of a Triggering Event, Common Shares or
other securities), register and qualify such Junior Preferred Shares (and,
following the occurrence of a Triggering Event, Common Shares or other
securities) under the Securities Act and any applicable state securities or
"blue sky" laws (to the extent exemptions therefrom are not available), cause
such registration statement and qualifications to become effective as soon as
possible after such filing and keep such registration and qualifications
effective until the earlier of the Expiration Date or the Final Expiration Date.
The Company may temporarily suspend, for a period of time not to exceed ninety
days, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to become
effective or to comply with such blue sky laws. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect.
(c) The Company covenants and agrees that it will take all such
action as may be necessary to insure that all Junior Preferred Shares (and
following the occurrence of a Triggering Event, Common Shares or other
securities) delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment of the Purchase Price in
respect thereof), be duly and validly authorized and issued and fully paid and
nonassessable shares in accordance with applicable law.
13
(d) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Rights Certificates
or of any Junior Preferred Shares (or Common Shares, other securities or assets,
as the case may be) upon the exercise of Rights. The Company shall not, however,
be required to pay any transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or the
issuance or delivery of certificates for Junior Preferred Shares (or Common
Shares, other securities or assets, as the case may be) upon exercise of Rights
in a name other than that of, the holder of record of the Rights Certificate,
and the Company shall not be required to issue or deliver a Rights Certificate
or certificate for Junior Preferred Shares (or Common Shares or other
securities, as the case may be) to a Person other than such holder of record,
until any such tax shall have been paid (any such tax being payable by the
holder of such Rights Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each Person in whose name
----------------------------
any certificate for Junior Preferred Shares (or Common Shares or other
securities, as the case may be) is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Junior
Preferred Shares (or Common Shares or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered and payment
of the Purchase Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the
Junior Preferred Shares (or Common Shares or other securities, as the case may
be) transfer books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Junior Preferred Shares (or
Common Shares or other securities) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the holder of a Rights
Certificate shall not be entitled to any rights of a stockholder of the Company
with respect to shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights and shall not be entitled to
receive any notice of any proceedings of the Company, except as otherwise
provided in this Agreement.
Section 11. Adjustments to Number and Kind of Shares; Number of Rights
----------------------------------------------------------
or Purchase Price. The number and kind of shares subject to purchase upon the
- -----------------
exercise of each Right, the number of Rights outstanding and the Purchase Price
are subject to adjustment from time to time as provided in this Section 11.
(a) (i) If the Company shall at any time after the date of this
Agreement (A) declare or pay any dividend on Junior Preferred Shares payable in
Junior Preferred Shares, (B) subdivide or split the outstanding Junior Preferred
Shares into a greater number of shares, (C) combine or consolidate the
outstanding Junior Preferred Shares into a smaller number of shares or effect a
reverse split of the outstanding Junior Preferred Shares or (D) issue any shares
of its capital stock in a reclassification of the Junior Preferred Shares
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), except
as otherwise provided in this Section 11(a) and subject to Section 7(e), the
Purchase Price in effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination or reclassification, and the
14
number and kind of Junior Preferred Shares or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that the holder of
any Right exercised after such time shall be entitled to receive, upon payment
of the Purchase Price then in effect, the aggregate number and kind of Junior
Preferred Shares or capital stock, as the case may be, which, if such Right had
been exercised immediately prior to such date and at a time when the Junior
Preferred Shares transfer books of the Company were open, the holder thereof
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the exercise of one
such Right be less than the per share par value of the shares of capital stock
of the Company issuable upon exercise of the Right. If an event occurs which
would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii).
(ii) Subject to Section 23(a) and Section 24, if any Person
shall at any time after the date of this Agreement become an Acquiring Person (a
"Flip-In Event"), then, except as otherwise provided in this Section 11,
-------------
promptly following the occurrence of such event, proper provision shall be made
so that each holder of a Right (except as provided in Section 7(e)) shall
thereafter have the right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement in lieu of the
number of one one-hundredths of a Junior Preferred Share, such number of Common
Shares, as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the then number of one one-hundredths of a Junior Preferred
Share for which a Right was exercisable immediately prior to the first
occurrence of a Flip-In Event, and (y) dividing that product (such product,
following such first occurrence, shall be referred to as the "Purchase Price"
with respect to each Right for all purposes of this Agreement) by 50% of the
Current Market Price (determined pursuant to Section 11(d)) per share of such
class of Common Shares for which a Right is exercisable on the date of such
first occurrence (such number of shares is herein called the "Adjustment
----------
Shares"); provided that the Purchase Price and the number of Adjustment Shares
- ------
shall be further adjusted as provided in this Agreement to reflect any events
occurring after the date of such first occurrence; and provided, further, that
if the transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13, then only the provisions of
Section 13 shall apply and no adjustment shall be made pursuant to this Section
11(a)(ii).
(iii) If the number of Common Shares which are authorized by
the Company's certificate of incorporation but which are not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights, is
not sufficient to permit the exercise in full of the Rights in accordance with
Section 11(a)(ii) and the Rights shall become so exercisable, the Company shall
take all such action as may be necessary (including seeking stockholder approval
for the authorization of additional shares) to authorize additional Common
Shares for issuance upon exercise in full of the Rights; provided, however, that
if the Company after using its reasonable best efforts to do so is unable to
cause the authorization of a sufficient number of additional Common Shares
within 120 days (the "Substitution Period"), the Company shall: (A) determine
-------------------
the value of the Adjustment Shares issuable upon the exercise of a Right (the
"Current Value") and (B) with respect to each Right (subject to Section 7(e)),
-------------
upon the exercise of such Right and payment of the Purchase Price, make adequate
provision to substitute for the Adjustment Shares (1) cash, (2) a reduction in
the Purchase Price, (3) equity securities other than
15
Common Shares of the Company (including, without limitation, shares, or units of
shares, of preferred stock of the Company which, by virtue of having dividend,
voting and liquidation rights substantially comparable to the class of Common
Shares of the Company for which a Right is exercisable are deemed in good faith
by the Board of Directors of the Company to have essentially the same value as
the class of Common Shares of the Company for which a Right is exercisable (such
shares or units of shares of preferred stock are herein called "Common Share
------------
Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any
- -----------
combination of the foregoing, having an aggregate value which, when added to the
value of the Common Shares of the Company actually issued upon exercise of such
Right, shall have an aggregate value equal to the Current Value (less the amount
of any reduction in the Purchase Price), where such aggregate value has been
determined in good faith by the Board of Directors of the Company based upon the
advice of a nationally recognized independent investment banking firm selected
in good faith by the Board of Directors of the Company; provided, however, that
if the Company shall not have made adequate provision to deliver value pursuant
to clause (B) above within 120 days following the later of (x) the first
occurrence of a Flip-In Event and (y) the date on which the Company's right of
redemption pursuant to Section 23(a) expires (the later of (x) and (y) being
referred to as the "Flip-In Trigger Date"), then the Company shall be obligated
--------------------
to deliver, upon the surrender for exercise of a Right and without requiring
payment of the Purchase Price, Common Shares of the Company for which a Right is
exercisable (to the extent available) and then, if necessary, cash or shares of
capital stock of the Company, which shares and/or cash have an aggregate value
equal to the excess of the Current Value over the Purchase Price. To the extent
that the Company determines that some action need be taken pursuant to the first
sentence of this Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e), that such action shall apply uniformly to all outstanding Rights,
and (y) may suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant to
such first sentence and to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of each Adjustment Share shall be the
Current Market Price per Common Share of the Company on the date of the
occurrence of the Flip-In Event and the per share or per unit value of any
Common Share Equivalent shall be deemed to equal the Current Market Price per
Common Share of the Company on such date.
(b) If the Company shall fix a record date for the issuance of
rights (other than the Rights), options or warrants to all holders of Junior
Preferred Shares entitling them to subscribe for or purchase (for a period
expiring within 45 calendar days after such record date) Junior Preferred
Shares, shares having the same rights, privileges and preferences as the Junior
Preferred Shares ("Equivalent Preferred Shares") or securities convertible into
---------------------------
Junior Preferred Shares or Equivalent Preferred Shares at a price per Junior
Preferred Share or Equivalent Preferred Share (or having a conversion price per
share, if a security convertible into Junior Preferred Shares or Equivalent
Preferred Shares) less than the Current Market Price (as determined pursuant to
Section 11(d)) per Junior Preferred Share on such record date, the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Junior Preferred Shares
outstanding on such record date, plus the number of Junior Preferred Shares
which the aggregate offering price of the total number of
16
Junior Preferred Shares and/or Equivalent Preferred Shares so to be offered
(and/or the aggregate initial conversion price of the convertible securities so
to be offered) would purchase at such Current Market Price, and the denominator
of which shall be the number of Junior Preferred Shares outstanding on such
record date, plus the number of additional Junior Preferred Shares and/or
Equivalent Preferred Shares to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible). If
such subscription price may be paid by delivery of consideration, part or all of
which may be in a form other than cash, the value of such consideration shall be
as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent and the holders of the Rights. Junior
Preferred Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed, and if such
rights or warrants are not so issued, the Purchase Price then in effect shall be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) If the Company shall fix a record date for a distribution to
all holders of Junior Preferred Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Junior Preferred Shares, but
including any dividend payable in stock other than Junior Preferred Shares) or
subscription rights or warrants (excluding those referred to in Section 11(b)),
the Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d)) per Junior Preferred Share on such record
date, less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Junior Preferred Share and the denominator of which shall be
such Current Market Price (as determined pursuant to Section 11(d)) per Junior
Preferred Share. Such adjustments shall be made successively whenever such a
record date is fixed; and if such distribution is not so made, the Purchase
Price shall be adjusted to be the Purchase Price which would have been in effect
if such record date had not been fixed.
(d) (i) For the purpose of any computation under this Agreement,
other than computations made pursuant to Section 11(a)(iii), the "Current Market
--------------
Price" per Common Share on any date shall be deemed to be the average of the
- -----
daily closing prices per share of the Common Shares for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date, and for purposes of computations made pursuant to Section 11(a)(iii), the
"Current Market Price" per Common Share on any date shall be deemed to be the
average of the daily closing prices per Common Share for the ten consecutive
Trading Days immediately following such date; provided, however, that if the
Current Market Price per Common Share is determined during a period following
the announcement by the Company of (A) any dividend or distribution on such
Common Shares payable in Common Shares or securities convertible into Common
Shares (other than a regular quarterly cash dividend and
17
other than the Rights), or (B) any subdivision, combination or reclassification
of such Common Shares, and prior to the expiration of the requisite thirty
Trading Day or ten Trading Day period, as set forth above, the ex-dividend date
for such dividend or distribution, or the record date for such subdivision,
combination or reclassification occurs, then, and in each such case, the Current
Market Price shall be appropriately adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the Nasdaq National Market or, if the Common
Shares are not listed or admitted to trading on the Nasdaq National Market, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc., Automated Quotations System or such
other system then in use, or, if on any such date the Common Shares are not
quoted by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Common Shares
selected by the Board of Directors of the Company. If on any such date no market
maker is making a market in the Common Shares, the fair value of such shares on
such date as determined in good faith by the Board of Directors of the Company
shall be used. The term "Trading Day" shall mean a day on which the principal
-----------
national securities exchange or national market system on which the Common
Shares are listed or admitted to trading is open for the transaction of business
or, if the Common Shares are not listed or admitted to trading on any national
securities exchange or national market system, a Business Day. If the Common
Shares are not publicly held or not so listed or traded, "Current Market Price"
per share shall mean the fair value per share as determined in good faith by the
Board of Directors of the Company whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation under this Agreement,
the "Current Market Price" of the Junior Preferred Shares shall be determined in
the same manner as set forth above for the Common Shares in Section 11(d)(i)
(other than the last 2 sentences thereof). If the Current Market Price per
Junior Preferred Share cannot be determined in the manner provided above, the
"Current Market Price" per Junior Preferred Share shall be conclusively deemed
to be an amount equal to 100 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Shares of the Company occurring after the date of this Agreement)
multiplied by the Current Market Price per Common Share. If neither the Common
Shares nor the Junior Preferred Shares are publicly held or so listed or traded,
"Current Market Price" per share of the Junior Preferred Shares shall mean the
fair value per share as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes. For all purposes of
this Agreement, the "Current Market Price" of one one-hundredth of a Junior
Preferred Share shall be equal to the "Current Market Price" of one Junior
Preferred Share divided by 100.
18
(e) Anything in this Agreement to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent in the Purchase Price;
provided, however, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a Common Share or other
security or one ten-thousandth of a Junior Preferred Share, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
years from the date of the transaction which mandates such adjustment, or (ii)
immediately prior to the Expiration Date or the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)
or Section 13(a), the holder of any Right thereafter exercised shall become
entitled to receive any property or shares of capital stock other than Junior
Preferred Shares, thereafter the amount of such property and the number of such
other shares so receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Junior Preferred Shares contained in this Section 11, and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to the Junior Preferred Shares shall
apply on like terms to any such other property or shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the Purchase Price, the number of one one-hundredths of a Junior
Preferred Share purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the Purchase Price, that number of one
one-hundredths of a Junior Preferred Share (calculated to the nearest one
one-hundred thousandth) obtained by (i) multiplying (x) the number of one
one-hundredths of a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price or any adjustment to the number of one one-hundredths of a
Junior Preferred Share for which a Right may be exercised, to adjust the number
of Rights, in lieu of any adjustment in the number of one one-hundredths of a
Junior Preferred Share purchasable upon the exercise of a Right. Each of the
Rights outstanding after the adjustment in the number of Rights shall be
exercisable for the number of one one-hundredths of a Junior Preferred Share for
which such Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one one-hundred
thousandth) obtained by dividing the Purchase Price in effect immediately prior
to adjustment of the Purchase Price by the Purchase Price in effect
19
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights Certificates have
been issued, shall be at least 10 days later than the date of the public
announcement. If Rights Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing, subject to
Section 14, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Rights Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredths of a Junior Preferred Share issuable upon
the exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one one-hundredth of a
Junior Preferred Share and the number of one one-hundredths of a share which
were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the number of
one one-hundredths of a Junior Preferred Share issuable upon exercise of the
Rights, the Company shall take any corporate action, including using its best
efforts to obtain any required stockholder approvals, which may, in the opinion
of its counsel, be necessary in order that the Company may validly and legally
issue fully paid and nonassessable one one-hundredths of a Junior Preferred
Share at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of the number of one one-hundredths of a Junior Preferred Share and other
capital stock or securities of the Company, if any, issuable upon such exercise
over and above the number of one one-hundredths of a Junior Preferred Share and
other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect immediately prior to such
adjustment; provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in its good faith judgment the
20
Board of Directors of the Company shall determine to be advisable in order that
any (i) consolidation or subdivision of the Junior Preferred Shares, (ii)
issuance wholly for cash of any Junior Preferred Shares at less than the Current
Market Price, (iii) issuance wholly for cash of Junior Preferred Shares or
securities which by their terms are convertible into or exchangeable for Junior
Preferred Shares, (iv) stock dividends or (v) issuance of rights, options or
warrants referred to in this Section 11, hereafter made by the Company to
holders of its Junior Preferred Shares shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o)), (ii) merge with or into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one transaction or a
series of related transactions not in the ordinary course of the Company's
business, assets, cash flow or earning power aggregating more than 50% of the
assets, cash flow or earning power, as the case may be, of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o)), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect that would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) shall have received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23 or Section 27, take (or
permit any Subsidiary to take) any action if at the time such action is taken it
is reasonably foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, if
the Company shall at any time after the date of this Agreement and prior to the
Distribution Date (i) declare a dividend on the outstanding Common Shares
payable in Common Shares, (ii) subdivide the outstanding Common Shares, or (iii)
combine the outstanding Common Shares into a smaller number of shares, the
number of Rights associated with each Common Share then outstanding, or issued
or delivered thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter associated with
each Common Share following any such event shall equal the result obtained by
multiplying the number of Rights associated with each Common Share immediately
prior to such event by a fraction the numerator which shall be the aggregate
number of Common Shares outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the aggregate number of Common
Shares outstanding immediately following the occurrence of such event.
Section 12. Certification of Adjustments. Whenever an adjustment is
----------------------------
made as provided in Sections 11 and 13, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement of the facts
giving rise to such adjustment, (b) promptly file with the Rights Agent and with
each transfer agent for the Common Shares or Junior
21
Preferred Shares a copy of such certificate and (c) if a Distribution Date has
occurred, mail a brief summary thereof to each holder of a Rights Certificate
(or, if prior to the Distribution Date, to each holder of a certificate
representing Common Shares) in accordance with Section 26. Notwithstanding the
foregoing sentence, the failure of the Company to give such notice shall not
affect the validity of or the force or effect of or the requirement for such
adjustment. The Rights Agent shall be fully protected in relying on any
certificate prepared by the Company pursuant to Sections 11 and 13 and on any
adjustment therein contained. Any adjustment to be made pursuant to Sections 11
and 13 shall be effective as of the date of the event giving rise to such
adjustment.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power.
- -------------
(a) If at any time following the time an Acquiring Person becomes
such, directly or indirectly, (x) the Company shall consolidate with, or merge
with and into, any other Person or Persons (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)), and the Company
shall not be the surviving or continuing corporation of such consolidation or
merger, (y) any Person or Persons (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o)), shall consolidate with, or merge
with and into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding Common Shares shall be
changed into or exchanged for stock or other securities of any other Person or
of the Company or cash or any other property, or (z) the Company or one or more
of its Subsidiaries shall sell or otherwise transfer to any other Person or any
Affiliate or Associate of such Person (other than the Company or any Subsidiary
of the Company in one or more transactions each of which complies with Section
11(o)), in one transaction or a series of related transactions not in the
ordinary course of the Company's business, assets, cash flow, or earning power
aggregating more than 50% of the assets, cash flow or earning power, as the case
may be, of the Company and its Subsidiaries (taken as a whole), then, on the
first occurrence of any such event, proper provision shall be made so that (i)
each holder of record of a Right, except as provided in Section 7(e), shall
thereafter have the right to receive, upon the exercise thereof at the then
Purchase Price in accordance with the terms of this Agreement, such number of
shares of validly issued, fully paid and nonassessable and freely tradable
Common Shares of the Principal Party (as hereinafter defined) not subject to any
liens, encumbrances, rights of first refusal or other adverse claims, as shall
be equal to the result obtained by (1) multiplying the then current Purchase
Price by the number of one one-hundredths of a Junior Preferred Share for which
a Right was exercisable immediately prior to the first occurrence of a Flip-Over
Event (or, if a Flip-In Event has occurred prior to the first occurrence of a
Flip-Over Event, multiplying the Purchase Price in effect immediately prior to
the first occurrence of a Flip-In Event by the number of one one-hundredths of a
Junior Preferred Share for which a Right was exercisable immediately prior to
such first occurrence of a Flip-In Event) and (2) dividing that product (such
product, following the first occurrence of a Flip-Over Event, shall be referred
to as the "Purchase Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price (determined as provided in Section
11(d)) per Common Share of such Principal Party on the date of consummation of
such Flip-Over Event (or the fair market value on such date of other securities
or property of the Principal Party, as provided for herein); provided that the
Purchase Price and the number of Common Shares of such Principal Party issuable
upon exercise of each Right shall be further adjusted as provided in this
Agreement to reflect any events occurring after
22
the date of the first occurrence of a Flip-Over Event; (ii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of such Flip-Over
Event, all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" for all purposes of this Agreement shall thereafter be
deemed to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 shall only apply to such Principal Party following the
first occurrence of a Flip-Over Event; and (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9) in connection with the
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its Common Shares thereafter deliverable upon the exercise of
the Rights; provided, however, that, upon the subsequent occurrence of any
merger, consolidation, sale of all or substantially all assets,
recapitalization, reclassification of shares, reorganization or other
extraordinary transaction in respect of such Principal Party, each holder of a
Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price, such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive had he, at the
time of such transaction, owned the Common Shares of the Principal Party
purchasable upon the exercise of a Right, and such Principal Party shall take
such steps (including, but not limited to, reservation of shares of stock) as
may be necessary to permit the subsequent exercise of the Rights in accordance
with the terms hereof for such cash, shares, rights, warrants and other
property. The provisions of Section 11(a)(ii) shall be of no effect following
the first occurrence of any Flip-Over Event.
(b) "Principal Party" shall mean:
---------------
(1) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a): (A) the Person that is the issuer
of any securities into which Common Shares of the Company are converted in such
merger or consolidation, or, if there is more than one such issuer, the issuer
the Common Shares of which has the greatest market value or (B) if no securities
are so issued, (x) the Person that is the other party to the merger or
consolidation and that survives said merger or consolidation, or, if there is
more than one such Person, the Person the Common Shares of which has the
greatest market value or (y) if the Person that is the other party to the merger
or consolidation does not survive the merger or consolidation, the Person that
does survive the merger or consolidation (including the Company if it survives);
and
(2) in the case of any transaction described in clause (z) of
the first sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to such
transaction or transactions, or, if each Person that is a party to such
transaction or transactions receives the same portion of the assets or earning
power so transferred or if the Person receiving the greatest portion of the
assets or earning power cannot be determined, whichever of such Persons is the
issuer of Common Shares having the greatest market value of shares outstanding;
provided, however, that in any such case described in Section 13(b)(1) or this
Section 13(b)(2), if the Common Shares of such Person are not at such time and
have not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which are and have been
23
so registered, the term "Principal Party" shall refer to such other Person, or
if such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Shares of which are and have been so registered, the term "Principal
Party" shall refer to whichever of such Persons is the issuer of the Common
Shares having the greatest market value of shares outstanding.
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) unless the Principal Party shall
have a sufficient number of authorized Common Shares which have not been issued
or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and the
Principal Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the requirements of Sections 13(a) and (b)
shall promptly be performed in accordance with their terms and that such
consolidation, merger, sale or transfer shall not result in a default by the
Principal Party under this Agreement as the same shall have been assumed by the
Principal Party pursuant to Sections 13(a) and (b) hereof and further providing
that, as soon as practicable after executing such agreement pursuant to this
Section 13, the Principal Party will:
(1) prepare and file a registration statement under the
Securities Act, if necessary, with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, use its best
efforts to cause such registration statement to become effective as soon as
practicable after such filing and use its best efforts to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the date of expiration of
the Rights, and similarly comply with applicable state securities laws;
(2) use its best efforts, if the Common Shares of the
Principal Party shall become listed on a national securities exchange, to list
(or continue the listing of) the Rights and the securities purchasable upon
exercise of the Rights on such securities exchange and, if the Common Shares of
the Principal Party shall not be listed on a national securities exchange, to
cause the Rights and the securities purchasable upon exercise of the Rights to
be listed by a national securities exchange or admitted for trading on the
Nasdaq National Market;
(3) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply in
all respects with the requirements for registration on Form 10 (or any successor
form) under the Exchange Act; and
(4) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Shares of the Principal Party subject
to purchase upon exercise of outstanding Rights.
If any of the transactions described in Section 13(a) shall occur at any time
after the occurrence of a transaction described in Section 11(a)(ii), the Rights
which have not theretofore been exercised shall thereafter be exercisable in the
manner described in Section 13(a). The provisions of this Section 13 shall
similarly apply to all successive mergers, consolidations, sales, transfers or
other Flip-Over Events.
24
(d) Furthermore, if the Principal Party which is to be a party to
a transaction referred to in this Section 13 has a provision in any of its
authorized securities or in its certificate of incorporation, articles of
incorporation, bylaws or other instrument governing its corporate affairs, which
provision would have the effect of (i) causing such Principal Party to issue, in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, Common Shares of such Principal Party at less
than the then Current Market Price per share (determined pursuant to Section
11(d)(i)) or securities exercisable for, or convertible into, Common Shares of
such Principal Party at less than such then Current Market Price (other than to
holders of Rights pursuant to this Section 13) or (ii) providing for any special
payment, tax or similar provisions in connection with the issuance of Common
Shares of such Principal Party pursuant to the provisions of this Section 13;
then, in such event, the Company hereby agrees with each holder of Rights that
it shall not consummate any such transaction unless prior thereto the Company
and such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been canceled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of Rights
or to distribute Rights Certificates which evidence fractional Rights. In lieu
of such fractional Rights, there shall be paid to the holders of record of the
Rights Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the then current
market value of a whole Right. For the purposes of this Section 14(a), the then
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable.
(b) The Company shall not be required to issue fractions of Junior
Preferred Shares (other than fractions which are integral multiples of one
one-hundredths of a Junior Preferred Share) upon exercise of the Rights, or to
exchange the Rights pursuant to Section 24 for fractions of Common Shares.
Fractions of Junior Preferred Shares in integral multiples of one one-hundredth
of a Junior Preferred Share may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between the Company
and a depositary selected by it, provided that such agreement shall provide that
the holders of such depositary receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners of the Junior
Preferred Shares. With respect to fractional Junior Preferred Shares that are
not integral multiples of one one-hundredth of a Junior Preferred Share, if the
Company does not issue fractional shares or depositary receipts in lieu thereof,
the Company shall pay to the registered holders of Rights Certificates at the
time such Rights Certificates are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of one one-hundredth of a
Junior Preferred Share. For purposes of this Section 14(b), the current market
value of one one-hundredth of a Junior Preferred Share shall be the Current
Market Price of one one-hundredth of a Junior Preferred Share (as determined
pursuant to Section 11(d)(ii)).
25
(c) Following the occurrence of a Triggering Event, the Company
shall not be required to issue fractions of Common Shares upon exercise of the
Rights or to distribute certificates which evidence fractional Common Shares.
In lieu of fractional Common Shares, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current per share
market value of one Common Share for which a Right is exercisable. For the
purposes of this Section 14(c), the current per share market value of one Common
Share for which a Right is exercisable shall be the closing price of one Common
Share (as determined pursuant to Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional shares (other
than fractions which are integral multiples of one one-hundredths of a Junior
Preferred Share) upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect of this
----------------
Agreement, except the rights of action given to the Rights Agent under Section
18, are vested in the respective holders of record of the Rights Certificates
(and, prior to the Distribution Date, the holders of record of the Common
Shares); and any holder of record of any Rights Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company or any other Person to enforce, or otherwise act in respect
of, his right to exercise the Rights evidenced by such Rights Certificate (or
prior to the Distribution Date, certificates for Common Shares) in the manner
provided in such Rights Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and, accordingly, that they will be entitled to
specific performance of the obligations under, and injunctive relief against
actual or threatened violations of the obligations of any Person subject to,
this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
--------------------------
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will not be
evidenced by a Rights Certificate and will be transferable only in connection
with the transfer of Common Shares;
(b) after the Distribution Date, the Rights Certificates will be
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and certificates
fully executed;
(c) subject to Section 6(a) and Section 7(f), the Company and the
Rights Agent may deem and treat the Person in whose name the Rights Certificate
(or, prior to the Distribution Date, the associated Common Shares certificates)
is registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights Certificate
or the associated Common Shares certificate made by anyone
26
other than the Company or the Rights Agent or the transfer agent of the Common
Shares of the Company) for all purposes whatsoever, and, subject to Section
7(e), neither the Company nor the Rights Agent shall be affected by any notice
to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or a beneficial interest in a Right or other Person as a result of
its inability to perform any of its obligations under this Agreement by reason
of any preliminary or permanent injunction or other order, decree or ruling
issued by a court of competent jurisdiction or by a governmental, regulatory or
administrative agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation; provided,
however, that the Company must use its best efforts to have any such order,
decree or ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
--------------------------------------------------
holder of a Right or a Rights Certificate, as such, shall be entitled to vote,
receive dividends in respect of or be deemed for any purpose to be the holder of
Junior Preferred Shares or any other securities of the Company which may at any
time be issuable upon the exercise of the Rights, nor shall anything contained
in this Agreement or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders of the Company at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders of the Company (except as set
forth in Section 25), or to receive dividends or subscription rights in respect
of any such stock or securities, or otherwise, until the Right or Rights
evidenced by such certificate for Common Shares or Rights Certificate, as the
case may be, shall have been exercised in accordance with the provisions of this
Agreement.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it under this Agreement and, from time
to time, on demand of the Rights Agent, its reasonable expenses and counsel fees
and other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties under this Agreement.
The Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
bad faith or willful misconduct on the part of the Rights Agent for anything
done or omitted to be done by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any Rights
Certificate, certificate for Common Shares or other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, guaranteed, verified or acknowledged, by the proper Person or
Persons.
27
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
---------------------------------------------------------
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement; provided that such corporation
would be eligible for appointment as a successor Rights Agent under the
provisions of Section 21. If at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and if at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of a predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) If at any time the name of the Rights Agent shall be changed
and at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver such Rights Certificates so countersigned; and if at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
----------------------
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
under this Agreement, such fact or matter (unless other evidence in respect
thereof be specifically prescribed in this Agreement) may be deemed to be
conclusively proved and established by a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for any action taken
or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
28
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery of this
Agreement (except the due execution of this Agreement by the Rights Agent) or in
respect of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any change in the
exercisability of the Rights or any adjustment required under the provisions of
this Agreement or responsible for the manner, method or amount of any such
change or adjustment or the ascertaining of the existence of facts that would
require any such change in the exercisability of the Rights or any change or
adjustment (except with respect to the exercise of Rights evidenced by Rights
Certificates after actual notice of any such change or adjustment); nor shall it
by any act under this Agreement be deemed to make any representation or warranty
as to the authorization or reservation of any Common Shares or Junior Preferred
Shares or other securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Common Shares or Junior Preferred Shares or
other securities will, when issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with the
instructions of any such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not the Rights
Agent under this Agreement. Nothing in this Agreement shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty under this Agreement either
itself or by or through its
29
attorneys or agents, and the Rights Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default, neglect or
misconduct, provided reasonable care was exercised in the selection and
continued employment thereof.
(j) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, split up, combination or exchange, the
certificate contained in the form of assignment or the form of election to
purchase set forth on the reverse thereof, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
Section 21. Change of Rights Agent.
----------------------
(a) The Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company and to each transfer agent of the Common Shares
and the Junior Preferred Shares by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. The Company may remove
the Rights Agent or any successor Rights Agent (with or without cause) upon 30
days' notice in writing, mailed to the Rights Agent or any successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares and
the Junior Preferred Shares by registered or certified mail, and to the holders
of the Rights Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent.
(b) Notwithstanding the foregoing provisions of this Section 21,
in no event shall the resignation or removal of a Rights Agent be effective
until a successor Rights Agent shall have been appointed and have accepted such
appointment. If the Company shall fail to make such appointment within a period
of 30 days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), then the
incumbent Rights Agent or the holder of record of any Rights Certificate may
apply to any court of competent jurisdiction for the appointment of a new Rights
Agent.
(c) Any successor Rights Agent, whether appointed by the Company
or by such a court, shall be a corporation organized and doing business under
the laws of the United States or any State thereof, in good standing, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has, or together with its parent entity has, at the time of its
appointment as Rights Agent a combined capital and surplus of at least $10
million.
(d) After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it under this Agreement, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later
30
than the effective date of any such appointment, the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares and the Junior Preferred Shares, and mail a notice thereof in
writing to the holders of record of the Rights Certificates or, if prior to the
Distribution Date, the holders of record of the Common Shares.
(e) Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
-----------------------------------
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in
such form as may be approved by the Board of Directors to reflect any adjustment
or change in the Expiration Date, the Purchase Price and/or the number or kind
or class of shares of stock or other securities or property purchasable under
the Rights Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the redemption or expiration
of the Rights, the Company (i) shall, with respect to Common Shares so issued or
sold pursuant to the exercise of stock options or under any employee plan or
arrangement, granted or awarded as of the Distribution Date, or upon the
exercise, conversion or exchange of securities issued by the Company hereinafter
but prior to the Distribution Date, and (ii) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (x) no such Rights Certificate
shall be issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Rights Certificate
would be issued, and (y) no such Rights Certificate shall be issued if, and to
the extent that, appropriate adjustment shall otherwise have been made in lieu
of the issuance thereof.
Section 23. Redemption and Termination.
--------------------------
(a) The Board of Directors of the Company may, at its option, at
any time prior to the earlier of (i) the Close of Business on the tenth day
following the Shares Acquisition Date (or, if the Shares Acquisition Date shall
have occurred prior to the Record Date, the Close of Business on the tenth day
following the Record Date), or (ii) the Final Expiration Date(such period the
"Redemption Period"), redeem all, but not less than all the then outstanding
-----------------
Rights at a redemption price of $0.0025 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date of this Agreement (such redemption price
being referred to in this Agreement as the "Redemption Price"). Any redemption
----------------
pursuant to the preceding sentence of this Section 23(a) will be effective
immediately upon the action of the Board of Directors of the Company ordering
the same, unless such action of the Board of Directors of the Company expressly
provides that such redemption will be effective at a subsequent time or upon the
occurrence or nonoccurrence of one or more specified events (in which case such
redemption will be effective in accordance with the provisions of such action of
the Board of Directors of the Company). The redemption of the Rights by the
Board of Directors of the Company may be made effective at such time, on such
31
basis and with such conditions as the Board of Directors of the Company may
establish in good faith.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to Section 23(a), and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. Promptly after such action of the
Board of Directors ordering the redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each holder's
last address as it appears upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent of the
Common Shares. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made. The failure to give notice required by this
Section 23 or any defect therein shall not affect the legality or validity of
any redemption hereunder. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23 or in
Section 24, and other than in connection with the purchase of Common Shares
prior to the Distribution Date.
Section 24. Exchange.
--------
(a) The Board of Directors of the Company may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or part of
the then outstanding and exercisable Rights (which shall not include Rights that
have become null and void pursuant to the provisions of Section 7(e)) for Common
Shares at an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date of this Agreement (such exchange ratio being referred
to in this Agreement as the "Exchange Ratio"). Notwithstanding the foregoing,
--------------
the Board of Directors shall not be empowered to effect such exchange at any
time after any Person (other than an Exempt Person), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Voting Power of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Section 24(a) and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of Common Shares equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company shall promptly mail a notice of any such exchange to
all of the holders of such Rights at the last addresses of the holders as they
appear upon the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be effected and, in the
event of any partial exchange, the number and kind of Rights which will be
exchanged. The failure to give notice required by this
32
Section 24 or any defect therein shall not affect the legality or validity of
any exchange hereunder.
(c) Any partial exchange shall be effected pro rata based on the
number of Rights being exchanged (other than Rights which have become null and
void pursuant to the provisions of Section 7(e)) held by each holder of Rights.
(d) If there shall not be sufficient Common Shares issued but not
outstanding or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company shall take all such
action as may be necessary to authorize additional Common Shares for issuance
upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common Shares.
In lieu of such fractional Common Shares, the Company shall pay to the
registered holders of the Rights Certificates with regard to which such
fractional Common Shares would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of such whole Common Shares. For
purposes of this Section 24(e), the current market value of a whole Common Share
shall be the closing price of a Common Share (as determined pursuant to the
second sentence of Section 11(d)(i)) for the Trading Day immediately prior to
the date of exchange pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
--------------------------
(a) If the Company, at any time after the Distribution Date, shall
propose to (i) effect any of the transactions referred to in Section 11(a)(i) or
to pay any dividend to the holders of record of its Junior Preferred Shares
payable in stock of any class or to make any other distribution to the holders
of record of its Junior Preferred Shares (other than a regular quarterly cash
dividend out of earnings or retained earnings of the Company), (ii) offer to
the holders of record of its Junior Preferred Shares options, warrants or other
rights to subscribe for or to purchase Junior Preferred Shares (including any
security convertible into or exchangeable for Junior Preferred Shares) or shares
of stock of any class or any other securities, options, warrants, convertible or
exchangeable securities or other rights, (iii) effect any reclassification of
its Junior Preferred Shares or any recapitalization or reorganization of the
Company, (iv) effect any consolidation or merger with or into, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries to effect
any sale or other transfer), in one transaction or a series of related
transactions not in the ordinary course of the Company's business, of more than
50% of the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to, any other Person or Persons, or (v) effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of record of Rights, in accordance with Section 26,
notice of such proposed action, which shall specify the record date for the
purposes of such transaction referred to in Section 11(a)(i), or such dividend
or distribution, or the date on which such reclassification, recapitalization,
reorganization, consolidation, merger, sale or transfer of assets, liquidation,
dissolution, or winding up is to take place and the record date for determining
participation therein by the holders of record of Junior Preferred Shares, if
any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 10 days prior to the
record date for determining holders of record
33
of the Junior Preferred Shares for purposes of such action, and in the case of
any such other action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of record of
Junior Preferred Shares, whichever shall be the earlier.
(b) If any of the transactions referred to in Section 11(a)(ii) or
Section 13 are proposed, then, in any such case, the Company shall give to each
holder of Rights, in accordance with Section 26, notice of the proposal of such
transaction at least 10 days prior to consummating such transaction, which
notice shall specify the proposed event and the consequences of the event to
holders of Rights under Section 11(a)(ii) or Section 13, as the case may be,
and, upon consummating such transaction, shall similarly give notice thereof to
each holder of Rights.
(c) If any Flip-In Event shall occur, then all references in this
Section 25 to Junior Preferred Shares shall be deemed thereafter to refer to the
class of Common Shares or other securities for which the Rights are then
exercisable.
Section 26. Notices. Except as provided in Section 21, notices or
-------
demands authorized by this Agreement to be given or made by the Rights Agent or
by the holder of record of any Rights Certificate or Right to or on the Company
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Rights
Agent) as follows:
Concurrent Computer Corporation
4375 River Green Parkway
Duluth, GA 30096
Attention: Kirk L. Somers, General Counsel
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of record of any
Rights Certificate or Right to or on the Rights Agent shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as follows:
American Stock Transfer & Trust Company
59 Maiden Lane
New York, NY 10038
Attention: Herbert J. Lemmer, General Counsel
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of record of any Rights Certificate or
Right (or, if prior to the Distribution Date, to the holder of certificates
representing Common Shares) shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as it appears upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent of the
Company.
34
Section 27. Supplements and Amendments. Prior to any Person becoming
--------------------------
an Acquiring Person, subject to the last sentence of this Section 27 the Company
may and the Rights Agent shall, if the Company so directs, supplement or amend
any provision of this Agreement without the approval of any holders of the
Rights, the Common Shares. From and after any Person becoming an Acquiring
Person, the Company may and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of Rights
in order to (i) cure any ambiguity, (ii) correct or supplement any provision
contained in this Agreement which may be defective or inconsistent with any
other provisions in this Agreement, or (iii) change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable;
provided, that no such supplement or amendment shall adversely affect the
interests of the holders of Rights (other than any interest of an Acquiring
Person or an Affiliate or Associate of an Acquiring Person). Upon the delivery
of a certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment. Prior
to the Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of the Common Shares.
Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may not be amended at a time when the Rights are not redeemable.
Section 28. Determinations and Actions by the Board. The Board of
---------------------------------------
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board of Directors or to the Company or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or advisable for
the administration of this Agreement (including a determination to redeem or not
redeem the Rights or to amend this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other parties, and (y) not
subject the Board of Directors of the Company to any liability to the holders of
the Rights.
Section 29. Successors. All of the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns under this
Agreement.
Section 30. Benefits of this Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any Person other than the Company, the Rights
Agent and the holders of record of the Rights Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the holders of record of
the Rights Certificates (and, prior to the Distribution Date, the Common
Shares).
Section 31. Governing Law. This Agreement, each Right and each Rights
-------------
Certificate issued under this Agreement shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and to be performed entirely within such State.
35
Section 32. Counterparts. This Agreement may be executed in any number
------------
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
--------------------
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Agreement.
Section 34. Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated.
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
Attest: Concurrent Computer Corporation
By: /s/ Kirk L. Somers By: /s/ Jack A. Bryant
--------------------- ----------------------------------
Name: Kirk L. Somers Name: Jack A. Bryant
Title: General Counsel Title: President and Chief Executive
Officer
Attest: American Stock Transfer & Trust Company
By: /s/ Susan Silber By: /s/ Herbert J. Lemmer
----------------------- ------------------------------------
Name: Susan Silber Name: Herbert J. Lemmer
Title: Assistant Secretary Title: Vice President
37
Exhibit A
---------
FORM OF AMENDED CERTIFICATE OF DESIGNATIONS,
PREFERENCE AND RIGHTS OF SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
of
CONCURRENT COMPUTER CORPORATION
Pursuant to Section 151 of
the General Corporation Law
of the State of Delaware
We, Denis R. Brown, Chairman of the Board and Chief Executive
Officer, and C. Michael Carter, Secretary of Concurrent Computer Corporation, a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation of the said Corporation, the said Board of
Directors on July 31, 1992, adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provision of its
Certificate of Incorporation, the Certificate of Designations, Preferences and
Rights of Series A Participating Cumulative Preferred Stock previously adopted
by the Board of Directors and filed with the Secretary o State of the State of
Delaware be, and it hereby is, amended by deleting the previously filed
Certificate of Designations, Preferences and Rights in its entirety and
substituting in lieu thereof the following:
1. 300,000 shares of Preferred Stock of the Corporation, par value
$.01 per share, are hereby constituted as a series of Preferred Stock designated
as "Series A Participating Cumulative Preferred Stock" (hereinafter called "this
series"). The Board of Directors is authorized to decrease and to increase the
number of shares of this series.
2(a). Before any dividend or distribution in cash or other
property (other than dividends payable in stock ranking junior to the shares of
this series as to dividends and upon liquidation) on any class or series of
stock of the Corporation ranking junior to the shares of this series as to
dividends and upon liquidation shall be declared or paid or set apart for
payment, the holders of shares of this series shall be entitled to receive cash
dividends, when and as declared by the Board of Directors, payable quarterly on
the fifth day of March, June, September and December (each such date being
referred to herein as a "Quarterly Dividend Payment Date") commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of this series, in an amount per share (rounded to the
nearest cent), subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate per share
amount of all cash dividends and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend payment Date, since the first
issuance of any share or fraction of a share of this series. In the event the
Corporation shall at any time after August 14, 1992 (the "Rights Declaration
Date") (i) declare or pay any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of this series were entitled immediately
prior to such event under the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
2 (b). The Corporation shall declare a dividend or distribution on
this series as provided herein immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of
Common Stock). If the funds available for the payment of such dividend are
insufficient to pay in full the dividends payable on all outstanding shares of
this series and shares of any other class or series of the Corporation ranking
on a parity herewith, the total available funds shall be paid in partial
dividends on the shares of such other class or series and the shares of this
series ratably in proportion to the respective annual dividend rates per share
fixed therefor (such rates being expressed as percentages calculated in each
case by dividing the annual dividend payments per share by the amount of the
voluntary liquidation preference per share). Accrued but unpaid dividends shall
not bear interest.
2 (c). Dividends shall begin to accrue and be cumulative on
outstanding Shares of this series from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of this series, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares or unless the date of such issue is
a Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of this series entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. The Board of Directors may fix a record date
for the determination of holders of shares of this series entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be no more than 60 days prior to the date fixed for the payment thereof.
3. Each share of this series shall entitle the holder thereof to
100 votes upon all matters upon which holders of Common Stock of the Corporation
have the right to vote, such votes to be counted together with those for any
other shares of capital stock having the right to vote on such mattes and not
separately as a class or group.
4. This series shall rank junior with respect to payment of
dividends and on liquidation to all other classes or series of the Corporation's
Preferred Stock outstanding on July 31, 1992 and to all such other series that
may be issued after such date except to the extent
A-2
that any such series specifically provides that it shall rank junior to this
series.
5. Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to this series unless, prior thereto, the holders of shares of this
series shall have received an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate per share
amount to be distributed per share to holders of Common Stock, or (ii) to the
holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with this series, except distributions
made ratably on this series and all other such parity stock in proportion to the
total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare or pay any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the aggregate amount to which holders
of shares of this series were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this series shall at the same time
be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time after the
Rights Declarations Date (i) declare or pay any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of this series shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. The shares of this series shall not be redeemable nor shall the
shares of this series be convertible into or exchangeable for shares of stock of
any other class or classes of stock of the Corporation.
8. Shares of this series which have been issued and acquired in
any manner by the Corporation (excluding, until the Corporation elects to retire
them, shares which are held as treasury shares but including shares purchased
and retired, whether through the operation of a sinking fund or otherwise)
shall, upon compliance with any applicable provisions of the laws of the state
of Delaware, have the status of authorized and unissued shares of Preferred
Stock and may be reclassified and reissued as part of a new series of Preferred
Stock to be created by
A-3
resolution or resolutions of the Board of Directors or as part of any series of
Preferred Stock other than this series, all subject to the conditions and
restrictions on issuance set forth in any resolution or resolutions adopted by
the Board of Directors providing for the issue of any series of Preferred Stock.
9. So long as any shares of this series are outstanding the
corporation will not:
(a) Declare or pay, or set apart for payment any dividends (other
than dividends payable in stock ranking junior to the shares of this series as
to dividends and upon liquidation) or make any distribution, on any other class
or series of stock of the Corporation ranking junior to the shares of this
series either as to dividends or upon liquidation and will not redeem, purchase
or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire,
any shares of any such junior class or series if at the time of making such
declaration, payment, distribution, redemption, purchase or acquisition, the
Corporation shall be in default with respect to any dividend payable on shares
of this series provided that, notwithstanding the forgoing, the Corporation may
at any time redeem, purchase or otherwise acquire shares of stock of any such
junior class or series in exchange for, or out of the net cash proceeds from the
sale of, other shares of stock of any junior class or series.
(b) Declare or pay, or set apart for payment any dividends (other
than dividends payable in stock ranking junior to the shares of this series as
to dividends and upon liquidation) or make any distribution, on any other class
or series of stock of the Corporation ranking on a parity with the shares of
this series either as to dividends or upon liquidation, except dividends paid
ratably on shares of this series and all such parity stock on which dividends
are payable or in arrears in proportion to the total to which the holders of all
such shares are then entitled and will not redeem, purchase or otherwise
acquire, or permit any subsidiary to purchase or otherwise acquire, any shares
of stock ranking on a parity with this series if at the time of making such
declaration, payment, distribution, redemption, purchase or acquisition, the
Corporation shall be in default with respect to any dividend payable on shares
of this series, provided that notwithstanding the foregoing, the Corporation may
at any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for, or out of the net cash proceeds from the sale of, other
shares of stock of any junior class or series.
(c) Without the affirmative vote of at least a majority of the
shares of this series at the time outstanding, given in person or by proxy
either in writing or by resolution adopted at an annual or special meeting
called for the purpose, at which the holders of the shares of this series shall
vote separately as a class, merge into or consolidate with any other corporation
if the shares of the surviving or resulting corporation into or for which shares
of this series are converted or exchanged shall be junior as to dividends or
upon liquidation to shares of any other class or series of stock of the
surviving or resulting corporation, except as provided in paragraph 4 hereof.
10. This series may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of this series.
A-4
11. For the purposes hereof:
(a) The term "outstanding" when used in reference to shares of
stock, shall mean issued shares, excluding shares held by the Corporation or a
subsidiary
(b) The amount of dividends "accrued" on any share of this series
as of any dividend date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including such dividend date, whether or not earned
or declared, and the amount of dividends accrued on any share of this series as
of any date other then a dividend date shall be calculated as the amount of any
unpaid dividends accumulated thereon to and including the last preceding
dividend date, whether or not earned or declared, but such amount shall not
include any interest or per share equivalent of interest.
(c) Any class or series of stock of the Corporation shall be
deemed to rank:
(i) prior to the shares of this series either as to dividends or
upon liquidation, if the holders of such class or classes
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up,
as the case may be, in preference or priority to the holders
of the shares of this series;
(ii) on a parity with the shares of this series either as to
dividends or upon liquidation, whether or not the dividend
rate, dividend payment dates, or redemptions or liquidation
prices per share thereof be different from those of the
shares of this series, if the holders of such class or
classes of stock shall be entitled to the receipt of
dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in proportion
to their respective dividend rates or liquidation prices,
without preference or priority one over the other with
respect to the holders of the shares of this series;
(iii) junior to the shares of this series either as to dividends
or upon liquidation of the rights of holders of such class
or classes shall be subject or subordinate to the rights of
the holders of the shares of this series in respect of the
receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be.
A-5
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties or perjury this 31st day
of July, 1992.
-----------------------------------
Denis R. Brown
Chairman of the Board
Chief Executive Officer
Attest:
- ----------------------------
C. Michael Carter
Secretary
A-6
Exhibit B
- --------------------------------------------------------------------------------
FORM OF
CERTIFICATE OF AMENDMENT
TO
AMENDED CERTIFICATE OF DESIGNATIONS,
PREFERENCE AND RIGHTS OF SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
of
CONCURRENT COMPUTER CORPORATION
Pursuant to Section 151 of
the General Corporation Law
of the State of Delaware
We, Jack A. Bryant, President and Chief Executive Officer, and Kirk L.
Somers, General Counsel of Concurrent Computer Corporation, a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation of the said Corporation, the said Board of
Directors on August 5, 2002, adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provision of its
Certificate of Incorporation, the Certificate of Designations, Preferences and
Rights of Series A Participating Cumulative Preferred Stock previously adopted
by the Board of Directors and filed with the Secretary of State of the State of
Delaware on August 13, 1992 be, and it hereby is, amended by deleting paragraph
1 in its entirety and substituting in lieu thereof the following:
1. 1,000,000 shares of Preferred Stock of the Corporation, par
value $.01 per share, are hereby constituted as a series of Preferred Stock
designated as "Series A Participating Cumulative Preferred Stock" (hereinafter
called "this series"). The Board of Directors is authorized to decrease and to
increase the number of shares of this series.
IN WITNESS WHEREOF, Concurrent Computer Corporation has caused this
certificate to signed and attested to by its duly authorized officers on this
7th day of August, 2002.
-------------------------------------
Jack A. Bryant
President and Chief Executive Officer
Attest:
- ------------------------
Steven R. Norton
Secretary
Exhibit C
---------
[Form of Rights Certificate]
Certificate No. R- Rights
--- -------
NOT EXERCISABLE AFTER AUGUST 14, 2012 OR UNDER CERTAIN
CIRCUMSTANCES EARLIER. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.0025
PER RIGHT ON THE TERMS SET FORTH IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT. IF THE RIGHTS REPRESENTED BY
THIS CERTIFICATE ARE ISSUED TO A PERSON WHO IS AN
ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN
ACQUIRING PERSON OR A TRANSFEREE OF THE RIGHTS
PREVIOUSLY OWNED BY SUCH PERSONS, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY WILL
BECOME NULL AND VOID.
Rights Certificate
Concurrent Computer Corporation
This certifies that _________________ or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Amended and Restated Rights Agreement dated as of August 7, 2002 (the "Amended
-------
and Restated Rights Agreement") between Concurrent Computer Corporation, a
- -----------------------------
Delaware corporation (the "Company"), and American Stock Transfer & Trust
-------
Company, a national banking association (the "Rights Agent"), to purchase from
------------
the Company at any time after the Distribution Date (as such term is defined in
the Amended and Restated Rights Agreement) and prior to 5:00 P.M., central time,
on August 14, 2012, at the principal office of the Rights Agent, or its
successors as Rights Agent, one one-hundredth of a fully paid and nonassessable
share of Series A Participating Cumulative Preferred Stock, $0.01 par value per
share ("Junior Preferred Shares"), of the Company at a purchase price of $30.00
as the same may from time to time be adjusted in accordance with the Amended and
Restated Rights Agreement ("Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase duly executed.
The number of Rights evidenced by this Rights Certificate (and the number of
Junior Preferred Shares which may be purchased upon exercise hereof) set forth
above, and the Purchase Price set forth above, are the number and Purchase Price
as of August 14, 1992 (the "Record Date") based on the Junior Preferred Shares
-----------
of the Company as constituted at such date. As provided in the Amended and
Restated Rights Agreement, the Purchase Price and the number of Junior Preferred
Shares which may be purchased upon the exercise of the Rights evidenced by this
Rights Certificate are subject to
modification and adjustment upon the happening of certain events and, upon the
happening of certain events, securities other than Junior Preferred Shares, or
other property, may be acquired upon exercise of the Rights evidenced by this
Rights Certificate, as provided by the Amended and Restated Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Amended and Restated Rights Agreement, which terms, provisions
and conditions are incorporated herein by reference and made a part hereof and
to which such Amended and Restated Rights Agreement reference is hereby made for
a full description of the rights, limitations of rights, obligations, duties and
immunities of the Rights Agent, the Company and the holders of record of the
Rights Certificates. Copies of the Amended and Restated Rights Agreement are on
file at the principal executive office of the Company and the above-mentioned
offices of the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder of record to purchase a like aggregate
number of one one-hundredths of a Junior Preferred Share as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof, another Rights
Certificate or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Amended and Restated Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the Company at its
option at a redemption price of $0.0025 per Right or (ii) may be exchanged in
whole or in part for Common Shares of the Company or common stock equivalents.
No fractional Junior Preferred Shares will be issued upon the exercise of
any Rights evidenced hereby (other than, except as set forth above, fractions
that are integral multiples of one one-hundredth of a Junior Preferred Share,
which may, at the election of the Company, be evidenced by depositary receipts),
but in lieu thereof, cash payment will be made, as provided in the Amended and
Restated Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of Junior Preferred Shares or
of any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Amended and Restated Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders of the
Company at any meeting thereof, or to give or withhold consent to any corporate
action or to receive notice of meetings or other actions affecting stockholders
of the Company (except as provided in the Amended and Restated Rights Agreement)
or to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Amended and Restated Rights Agreement.
C-2
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
C-3
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal, dated as of ______________ _20__.
ATTEST: CONCURRENT COMPUTER
CORPORATION
By:
- ------------------------------- -------------------------------
Secretary Name:
Title:
Countersigned:
- -------------------------------
By
-----------------------------
Authorized signature
C-4
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and
-------------------------
transfers unto
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please print name and address of transferee)
Rights evidenced by this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
Attorney to transfer the within Rights Certificate on the
- ---------------------
books of the within-named Company, with full power of substitution.
Dated: ,
----------- ----
----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
-----------------------------------
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being sold, assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined pursuant to the Amended and Restated Rights
Agreement); and (2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or any transferee of such Persons.
Dated: ,
------------ ----
----------------------------------
Signature
NOTICE
The signature to the foregoing Assignment must correspond to the name as written
upon the face of this Rights Certificate in every particular, without alteration
or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder desires to
Exercise the Rights Certificate.)
To: Concurrent Computer Corporation
The undersigned hereby irrevocably elects to exercise
--------------------
Rights represented by this Rights Certificate to purchase the Junior Preferred
Shares issuable upon the exercise of such Rights and requests that certificates
for such share(s) be issued in the name:
Please insert social security
or other identifying number
- ------------------------------------------------
(Please print name and address)
- ------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- ------------------------------------------
(Please print name and address)
- ------------------------------------------
Dated:
--------------, ----
---------------------------------------
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Rights Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
-----------------------------------
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Amended and Restated Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is or was an Acquiring Person or an Affiliate or Associate
of an Acquiring Person or any transferee of such Persons.
Dated:
--------------, -----
--------------------------------
Signature